Sometimes, it is a mystery how a prior Supreme Court decision — not well known except to real insiders — is dug up, perhaps by a law clerk, and given new notoriety.  Such has been the fate of U.S. v. Halper, a constitutional ruling that stood for less than nine years until it was largely cast aside as “ill considered” and had “proven unworkable.”

Chief Justice John G. Roberts, Jr., used Halper in dissent on Monday to flay a majority for another ruling that he clearly deemed ill considered and unworkable.  Halper‘s fate, he said, was “a cautionary tale,” and added: “I believe we will come to regret this decision as well.”  He was writing for the dissenters in Caperton v. A.T. Massey Co. (08-22), in which the majority sought to lay down a variable standard on when an elected judge is constitutionally obliged to disqualify from participating in a case involving a political benefactor.

The jurisprudential linkage between Halper and Caperton, however, was not obvious.  In fact, Halper is not mentioned in the briefs in Caperton.

Someone in the courthouse must have remembered it, though.  And it may well have been not a current law clerk, but a former one.  Indeed, it may well have been John G. Roberts, Jr., the onetime Rehnquist clerk and now, of course, the Chief Justice (and the main dissent’s author in Caperton).

On Jan. 17, 1989, just days before his 34th birthday, Roberts, specially appointed by the Court to represent Irwin Halper because Halper had no lawyer of his own, stood up at the Court’s lectern to make his very first oral argument before the Justices.  And he won, unanimously.  (He defeated another lawyer making his first argument, Michael R. Dreeben, with the U.S. Solicitor General’s office,then and now.)

How could Roberts possibly forget?  And, it appears, he did not.

The U.S. government had taken the Halper case to the Supreme Court in hopes of getting a flat ruling that the Constitution’s ban on “double joepardy” (more than one trial for the same offense) only applied in criminal cases, and thus had no bearing on the civil punishment of Irwin Halper of Armonk, N.Y.

Halper had been convicted of filing 65 false claims for Medicare benefits, totaling at most $585. He was fined $5,000 and served two years in prison.  Less than a year later, the government went after him again for the same 65 claims; this time, it sought a civil penalty of $130,000 – 65 times a basic fine of $2,000 under the False Claims Act.  A federal judge refused, saying this was double jeopardy.

Outraged, the government used its right under federal law to go directly to the Supreme Court, bypassing a court of appeals, when a federal law had been struck down by a District judge.   The judge had found Halper’s civil punishment to be “disproportionately harsh,” the government appeal said, and it added that, if that approach is followed, other federal laws that provide for civil as well as criminal penalties would be in jeopardy, too.

That argument persuaded the Court to hear the case, and it named Roberts to take on the case to brief and argue for Halper (who earlier had filed a mere page-and-a-half document urging the Court to bypass the case.)

In the government’s brief, it lambasted the District Court’s approach, saying: “Depending as it does on the court’s view of whether the sanctions prescribed by Congress are disproportionate under the circumstances of the particular case, the district court’s theory, if adopted, would be unpredictable and largely standardless in its application…”  It could seriously hamper the government’s power to go after fraud, the brief argued.

Roberts’ answering brief defended the ruling for Halper.  The government errs, he wrote, “in forecasting dire consequences with respect to its efforts to stamp out false claims if the decision below is upheld.”  He outlined ways to avert such consequences.

The proper inquiry about whether a civil penalty on top of a criminal penalty “necessarily depends on the facts” of a given case, he said, adding that “a case-by-case approach…is the only approach that makes sense where double jeopardy is concerned….The question is always whether a particular person in a particular case has been subjected to multiple punishments or repeated prosecution for the same offense.”  Such an approach, Roberts asserted, “will not be at all disruptive.”

Agreeing with Roberts, and not the government, the Court in Halper declared unanimously that the $130,000 civil penalty against Irwin Halper violated his right not to be put in jeopardy twice.   Wrote Justice Harry A. Blackmun for the Court: “The determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty” and “a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment.”

Blackmun insisted the Court was not laying down any general rule: “We acknowledge that this inquiry will not be an exact pursuit…The process of affixing a sanction that compensates the government for all its costs inevitably involves an element of rough justice….What we announce now is a rule for the rare case, the case such as the one before us…We do not consider our ruling far reaching or disruptive of the Government’s need to combat fraud.”

That came down in May 1989, a clear-cut win for Irwin Halper — and for John Roberts, his appointed lawyer.

But, on Monday of this week, Chief Justice Roberts summoned up the Halper ruling not to praise it or his rookie performance, but to congratulate the Court for having buried it in December 1997, when the Court decided Hudson v. U.S.  Chief Justice Rehnquist wrote for the somewhat divided yet unanimous Court (9-0 on the result).

The main opinion said: “We believe that Halper‘s deviation from longstanding double jeopardy principles was ill considered. As subsequent cases have demonstrated, Halper‘s test for determining whether a particular sanction is ‘punitive,’ and thus subject to the strictures of the Double Jeopardy Clause, has proved unworkable.”  It expressed dismay over “the wide variety of novel double jeopardy claims spawned in the wake of Halper.”

Recalling this sequence in dissent on Monday, Chief Justice Roberts  said the Court in Caperton was repeating the error of Halper.

“The deja vu,” he wrote, “is enough to make one swoon.”  But, apparently, not enough to make one forget.

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